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DIRECT PAYMENTS
SOCIAL WORK (SCOTLAND) ACT 1968:SECTIONS 12B AND C
POLICY AND PRACTICE
GUIDANCE

Dear Colleague

SOCIAL WORK (SCOTLAND) ACT 1968 , SECTIONS 12B AND 12C
DIRECT PAYMENTS: POLICY AND PRACTICE GUIDANCE

Introduction

1. This policy and practice guidance is issued under Section 5(1) of the Social Work (Scotland) Act 1968 ("the 1968 Act"). It offers advice to local authorities on how to make direct payments under sections 12B and 12C of the 1968 Act which now place a duty on local authorities to offer direct payments to eligible people who wish to receive them for adult community care and children's services. This includes housing support services and equipment and temporary adaptations.

2. Section 7 of the Community Care and Health (Scotland) Act 2002 ("the 2002 Act") introduces a number of measures which amend section 12B to help make direct payments more widely available. The Community Care (Direct Payments) (Scotland) Regulations 2003 ¹ (" the 2003 Regulations") specify persons who cannot receive services by direct payments, and other conditions attached to their use. The legislation requires local authorities to offer direct payments to certain disabled people who have been assessed as needing community care or children's services. The person receiving the direct payments must give their consent and be able to manage them (but can have as much assistance as necessary).The person using the services bought with direct payments must not come within the list of persons excluded by regulations.

3. This guidance replaces the policy and practice guidance issued under cover of circular CCD 8/2002 on 10 July 2002.

Background

4. The Executive's aim in introducing these measures is to increase the independence of people who use community care or children's services. We believe that direct payments promote a more person-centred approach to service provision giving people more control and choice over the way the services they need are delivered. These provisions were included in the 2001 "Better Care for all our futures" consultation document and were widely welcomed.

New provisions commenced on 1 June 2003

5. The 2002 Act places a duty on local authorities to offer direct payments to all who are potentially eligible (as defined by the 2003 Regulations) to receive them. This came into effect on 1 June 2003. This means that local authorities can no longer choose to make direct payments available only to certain groups of disabled people nor can they make them available only for certain services.

6. To receive direct payments consent must be given. Where it is clear that the person who requires the services is unable to give the consent required, an attorney or guardian, with the relevant powers, may give that consent instead. In the case of a disabled child (under the age of 16 or aged 16 or 17 and unable to give consent himself) who requires services, a parent or a person with parental responsibility for the child, can give that consent.

7. Direct payments recipients may purchase the services they require from any local authority.

New provisions commencing on 1 April 2004

8. From 1 April 2004 direct payments will be extended beyond disabled people to all community care and children's services client groups (with the exception of certain groups of people who may be excluded by regulations). For example, this will make direct payments available to people who are assessed as in need of community care services because they are frail, fleeing domestic abuse or recovering from drug or alcohol problems.

9. Further guidance will be issued nearer the commencement date on how a local authority might implement this provision.

Consultation

10. We received 30 responses, including 16 from local authorities, when the draft guidance was issued for consultation on 13 March 2003. Wherever possible we have taken these comments on board. In particular, it was clear that there was some confusion in the original draft about:

• the rights of 16 and 17 year olds;
• powers an attorney or guardian might have in relation to receiving direct payments;
• who will become eligible in 2004; and
• ownership and responsibility for equipment and temporary adaptations.

These areas have been addressed. In response to the comments received we have also given more detailed guidance about direct payments for children's services as well as attorneys and guardians. Copies of the responses received will be available, on request (by E-mail to: alan.gold@scotland.gsi.gov.uk or by telephone 0131 244 4552) from the Executive shortly.

11. Under the auspices of "Direct Payments Scotland" a working group has been set up to look at issues relating to children's services. It is currently considering the length of respite breaks that can be bought with direct payments and how to set up a process for individuals to access Enhanced Disclosure checks.

"Direct Payments Scotland"

12. To assist local authorities and local support organisations develop direct payments in their area the Executive set up the 2 year project "Direct Payments Scotland" (DPS) in April 2001. The project has now been extended until March 2006. You can contact DPS by calling the helpline on 0131 558 3450 or by E-mail to info@dpscotland.org.uk.

Action

13. We ask that this guidance is distributed as widely as possible to staff involved with community care, housing support or children's services.

Contact points

14. Enquiries and comments about this circular should be addressed to Debi Garft (Tel: 0131 244 5455) at Scottish Executive, Health Department, Community Care Division 1, 2 East Rear, St Andrew's House, Regent Road, Edinburgh, EH1 3DG or by E-mail to debi.garft@scotland.gsi.gov.uk.

15. Copies of this guidance are available to other interested parties by contacting Gemma Perkins 0131 244 3523 (E-mail address gemma.perkins@scotland.gsi.gov.uk)

Yours sincerely

MISS THEA S TEALE

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